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Home My WebLink About1986-0877.Greer et al.91-01-22EMPLOYk DE Lp COURONNE DE L’ONT*RIO COMM,SS,ON DE SElTLEMENT RiGLEMENT DES GRIEFS ” a77./86, 882186, 883186 884186 IN THE MATTER OF AN ARBITRATION Under THE CRONN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARB ' BETNEEN OPSEU (Greer et al) - and i Grievor . . The Crown in Right of Ontario (Ministry of Natural Resources) ~. Employer BEFORE: N. Dissanayake Vice-Chairperson I. Freedman Member A. Merritt Member FOR THE GRIEVOR C. ~Hofley Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE EMPLOYER. B. Labord Counsel Hicks Morley Hamilton Stewart Storie Barr~isters & Solicitors HEARING: April 11, 12 1989 June 20, 1990 .^ .- em In July 1986, the grievors filed grievances & Liming that they were improperly classified as Resource Technician I and sought a direction that they be properly classified. The Employer took the position that the proper classification. for the grievors was Resource Technician II. However, the Union disagreed, and contended that the Resource Technician series was altogether inappropriate. In the-alternative 'it was argued that. the grievors should be reclassified as Resource Technician III. The Board heard these grievances on April 11 and 12; 1989 and issued its decision on May 25, 1989. The Board's decision in substance was that that the duties performed by the grievors had little to do‘with natural resource management which was the focus of the Resource Technician series of class standards. The Board concluded that the grievors .were functioning as law .enforcement officers. Accordingly the Board declared that the grievors,did not,properly fit within any of the Resource Technician series of class standards, and made a Berrv type direction that the grievors be properly classified. ’ i L; 3 The Board was reconvened on June 20, 1990 because the parties had difficulty implementing the award. The source of the difficulty is readily apparent. The Board conducted the hearing and issued its -decision on the basis that the grievors were members of the classified service, complaining that they were improperly classified. The parties also argued the case on that basis. The Board's understanding of the case is demonstrated by the opening paragraph of its decision of May 25, 1989 where it states: The grievors, Terry P. Greer, Kendall D. Dewey, W. James Moore, Alexander Korchuk and William R. Kemp, grieve that they have been improperly classified as Resource Technician I and seek *-a declaration to that effect together with a direction that they be _ .properly classified. In the alternative, the grievors seek to be classified as Resource Technician III. ;;r-.; As it turns out now, 'the parties are agreed that the grievors are seasonal employees and not members of the' classified service. They disagree as to how the Board,'s Berry order might apply to seasonal employees and seek clarification. Subsequent to the Board's decision, Mr. Roger M. Gordon, Director of the Ministry's Human Resources Branch sent the following letter dated July 21, 1989 to Union Counsel: 4 All the grievors affected by this decision are seasonal employees. I would refer. you to article 3.21.1 of the Collective Agreement which states: Waaes .: 3.21.1 The rate of the equivalent civil service classification shall apply. If there is no equivalent classification the rate shall be set by the Ministry and the Union shall have the right to negotiate the rate during the appropriate salary negotiations. .~ Upon receiving.this decision we have-reviewed other class standards which applicable to might be these grievors and have concluded that there is no class standard which more properly fits their jobs. Additionally, we note that~ the decision specifically found that the work doesn't belong in the Resource Technician series which was the original relief sought by these grievors. It is my decision therefore that there is no equivalent classification and I have decided to set the rate-of pay at its present level.' You may wish to advise the appropriate negotiation officer in 0.P.S.E.U: to ensure that~ salary demands, if any, are put forward at the appropriate. salary negotiations. It is my position that by this action the Ministry has complied in full with the decision of the board. Counsel for the Union disagrees with Mr. Gordon's point of view. While conceding that the Board decision does not require the Employer to create a clksification for the unclassified employees, counsel argues that the Board's decision should be interpreted in the following 5 manner. Firstly, the Board's finding that the grievor's are improperly classified as RT 3 should be read as a finding that the RT 3 classification is not an equivalent classification for purposes of setting wage rates for seasonal employees under article 3.21.1. The Board must also be taken to have found that there is no existing equivalent classification for purposes of setting wages. It follows from that, according to counsel, that the Board's purported Berrv order, is in effect an order to create an equivalent classification as a reference point for.setting the grievor's wage rates. s Having considered the submissions ,of then parties, we are of the view that unclassified employees are not entitled to file classification grievances. While Counsel for the Union rightly points out that neither section ia(2) of the Crown Rmnlovees Collective Baraainina Act nor article 27 of the collective agreement draws any distinction between classified and unclassified employees, to find that an unclassified employee (i.e. an employee who has no classification and is not entitled to one) can grieve that he is improperly classified, is'to defy common sense and logic. How can an employee who by definition is not classified, complain that he is improperly classified? Therefore, ., : 6 the-grievances at hand must be taken to be an allegation that the RT 1 or RT 2 classifications are not equivalent .i.-&...:;: .. classifications for purposes of setting wage rates under article 3.21.1. The Board's decision in effect upholds that allegation. The Board's decision should also be taken to mean that there is no existing equivalent classification which can be properly used as a ref,erence ,point for setting the grievers' wage rates. Having made those findings, has the Board the ,.. authority to direct that the Employer create an .._+. equivalent classification to be used as a reference point? CounselifS the Union submits that it does. He relies on the Court decision .in Berry to argue that "where there is a right there must be a remedy". Having considered the submissions presented to us, we have concluded that the Board-has no jurisdiction to direct the creation of an equivalent classification for unclassified employees. Firstly, the rationale in Berrv does not apply here. The court decision was premised on the fact that every employee in the classified service had a riuht under the collective agreement to be properly classified. Therefore it was held that if none of the existing classifications fit, one must be. created. Unclassified employees on the other hand, have no right to an equivalent classification. Article 7~.<. . . 3.21.1 clearly contemplates situations where an employee may not have an equivalent classification for purposes of setting wage rates. Then the article. goes onto provide what must happen in those situations. To look at the matter from a different perspective, the theory in Berry that "where there is a right there must be a remedy" does not help the union either. In article 3.21.1~the parties have explicitly set out the remedy available to an unclassified employee where there is no equivalent classification. That article authorises the Employer in those circumstances to unilaterally set the wage rate and gives the union "the right to negotiate the rate during the appropriate salary negotiations". For the foregoing reasons the Board's decision of' May 25, 1989 should be interpreted and applied as a finding that the RT series of classifications are not equivalent classifications for purposes of article 3.21.1. Since the Employer has determined that there are no other existing classifications which are equivalent (the Union does not take issue with that), the only remedy available to the Union is that set out in article 3.21.1. Counsel for the Employer agreed that if and when a new rate is negotiated in the exercise of 8 the right.conferred upon the Union by artidle 3.21.1, the new rate shall have retroactivity to 20 ~days before the filing date of the respective~ grievances, and the Board hereby directs that that be so. C’. Dated.this22nd day of January 1991 at Hamilton, Ontario e@--- N. Dissanayak; Vice-Chairperson